How the Court decides the living arrangements for children

Jennifer who had separated from her husband Paul 11 months earlier sought advice firstly from Richard Watson and from Dennis Grant as Jennifer and Paul had not been able to put in place an appropriate arrangement in relation to the children. Jennifer and Paul lived close to each other in separate houses. They had not been able to establish a pattern of living arrangements for the two children aged 9 and 11. The children attended the same school and both had weekend sporting commitments. Each week, and especially on weekends, disputes arose as to where the children would be living and what activities would take place

Jennifer and Paul had been to Mediation and attempted to negotiate a Parenting Plan but could not reach an agreement. Jennifer sought Dennis Grant’s advice as to how to resolve the issues and come to an agreement with Paul appropriate for the two children. As part of this process Jennifer wanted to understand how the Court would determine the case if there was no agreement reached with Paul.

The Court considers firstly the children’s best interest as the children’s best interests are paramount. This does not of itself assist parents who are going through a difficult relationship change. In determining what is in the best interests of the children the Court looks at the provisions of section 60CC of the Family Law Act.

These factors include:-

1. The benefit to the child of having a meaningful relationship with each of the child's parents.

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

4. The nature of the relationship of the child with each of the child’s parents and other persons:(including any grandparent or other relative of the child);

5. The extent to which each of the child 's parents has taken, or failed to take, the opportunity to participate in making decisions in relation to major long term issues, has failed to spend time with the child or communicate with the child.

6. The extent to which each of the child‘s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

7. The likely effect of any changes in the child 's circumstances, including the likely effect on the child of any separation from either of his parents or any other child or person or relative with whom the child has been living.

8. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with each parent on a regular basis;

9. The capacity of each of the child's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;

10. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

11. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

12. Any family violence involving the child or a member of the child 's family.

14. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

15. The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.

16. The effect on the children if spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to implement such arrangement and communicate with each other should difficulties arise.

Knowing that the Court considers the above factors it is important that our client considers those matters and there is a discussion as to the relevance of each of those matters and any other matter that a parent thinks is important so that we can use our experience and advise as to the likely outcome of a Court decided outcome, the possible alternatives and more importantly how to achieve the possible optimum alternative for our client without the need of having the matter cdetermined by a Court. Often the decision by the Court will be more unsatisfactory to one or on some occasions to each of the parents than an agreed outcome.

Dennis Grant is experienced in ascertaining the relevant issues and negotiating the optimum outcome for our client and the children.

Please telephone Richard Watson or Dennis Grant if you wish to discuss your concerns relating to the time that your children spend with you, the other parent and other important people in their life.